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    III.Landmark Cases

    The Federal Supreme Court (Bundesgericht) in Lausanne is the highest court in Switzerland and also the highest instance court for civil cases. Parties may only appeal to the Federal Supreme Court if they have exhausted all other procedures before hierarchically lower courts. When considering civil law matters, the main task of the Federal Supreme Court is to secure the consistent application of Swiss civil law throughout Switzerland. However, the Federal Supreme Court does not engage in reassessing the substance of a case or hearing new facts. Instead, it focuses only on whether the law has been correctly applied and interpreted.


    In 2006 the Federal Supreme Court was given the (rare) opportunity (i) to shed light on the question whether a duty to inform can be derived from the general principle of good faith according to Article 2 I and (ii) to elaborate on grounds for unworthiness to inherit pursuant to Article 540.

    E was born on 7 February 1907. She married an industrialist from Dresden. The marriage remained childless. A few years after the death of her husband, E relocated to and settled in Basel. She lived in her own flat, independently and without need for nursing care. On the 8 or 9 December 1993, E fell heavily in her apartment where she laid on the ground for a while without care or help. Following her accident, E (hereinafter: testator) was admitted to a nursing home 1993 where she died on 9 July 1995.

    K (hereinafter: plaintiff) comes from a family that belonged to the circle of friends or acquaintances of the testator. According to a will dated 31 August 1987, the testator appointed K as sole heir. In a supplement to that will, the testator confirmed K’s position as sole heir on the 10 March 1991.

    B (hereinafter: defendant) acted as the testator’s lawyer from 1991 until, presumably, her death. According to the facts the Federal Supreme Court was bound by, the defendant has been the lawyer of the testator since 1991 and has also discussed hereditary issues with her. When asked about her wishes regarding her estate, the testator replied to the defendant with the words: “That’s you.” During a visit at the nursing home, the defendant was informed by the testator in April 1994 about her will and that she had appointed the defendant as her sole heir. The defendant took this testament dated 2 December 1993 with him when he left the testator.

    In addition to the relationship of trust as the testator’s nominated lawyer, the defendant exercised great personal influence over the testator. The testator has not only been in a relationship of trust with the defendant, but continued to be in an actual relationship of dependency. With constant gifts the testator wanted to gain and maintain the friendship and affection of the defendant. The defendant was almost the sole reference person of the testator. The testator assumed that the defendant’s consideration towards her was the result of genuine friendship and affection, and in this light she appointed the defendant as her sole heir. The defendant, on the other hand, did not act on the basis of friendship, but wanted to enrich himself. As the courts held, the defendant’s true intentions have remained hidden from the testator.

    In a handwritten will dated 16 November 1992 or 1993 (the exact year could not be determined), the testator appointed the defendant as her sole heir and executor and instructed him to pay out a certain sum as a legacy (Vermächtnis) to the plaintiff. In a testament dated 2 December 1993, the testator confirmed the defendant as sole heir and executor, but this time she did not include in the new will the legacy in favour of the plaintiff. Finally, in a letter to the defendant dated 25 February 1995, the testator revoked all previous testamentary dispositions and instructions, with the exception of those in favour of the defendant.

    The plaintiff challenged the defendant’s appointment as the sole heir and executor of the testator and, inter alia, brought an action seeking annulment of the testament dated 2 December 1993, stating that the defendant was unworthy to inherit and thus incapable to act as executor. The civil court of Basel-Stadt declared the last will of 2 December 1993 invalid. The appellate court of the canton of Basel-Stadt came to the contrary conclusion that the last will of 2 December 1993 was valid. However, the appellate court ultimately allowed the claim and found that the defendant was unworthy to inherit and incapable of exercising the office of executor.

    With his appeal, the defendant requested to be, essentially, reinstated as executor and declared sole heir of the testator. The appeal was dismissed by the Federal Supreme Court.

    With regards to the unworthiness of the defendant to inherit, the Federal Supreme Court had to answer the question whether the defendant, as the lawyer of the testator, had been under the duty to inform her about his conflict of interest (as lawyer and presumed sole heir) and, as a result, had maliciously prevented the testator from making a new and/or revoking the existing (last) will.

    Firstly, the court held that the malicious act or omission pursuant to Article 540 I No 3 does not require that a criminal act had been committed. Secondly, the court confirmed the view that there must be a causal relationship between the malicious act or omission and the fact that the decedent did not make or revoke a will. In cases of a potential failure to provide advice and information, the hypothetical causality must be analysed. In other words, one must ask whether – based on an ordinary course of events and the general experience of life – a testator would have made, amended, or revoked a testament had he or she been informed in a proper manner.

    The court then turned to the question whether the defendant was under a legal obligation to inform the testator about his true intentions which were not based on genuine friendship and about the conflict of interest arising from his simultaneous position as the testator’s appointed sole heir and lawyer. The court repeated that from 1991 until her death the defendant was the only reference person for the testator. From the testator’s perspective, this was much more than a working or purely professional relationship. Against this background, the court relied on the principle of good faith (Article 2) requiring parties to a legal relationship to act in an appropriate and honest manner. By not informing the testator about his true – i.e. purely economic – intentions and the conflict of interest as the testator’s appointed heir and lawyer, the defendant had caused the testator to believe that they had a genuine friendship. Against this background the testator kept the defendant as the sole heir and executor until her death. Interestingly, the court did see that the testator, from a legal point of view, could have amended or revoked her last will and/or made a new testament at any time. However, it emphasised that the testator had relied on the (wrong) assumption that she and the defendant shared a friendship which made her believe there was no need to revoke her will or to make a new one.

    In the eyes of the court, the defendant’s failure to inform the testator about his true intentions as well as of his conflict of interest qualified as a grave misconduct on his part resulting in his unworthiness to inherit and to act as executor.


    In this case the Federal Supreme Court was given the opportunity to examine the significance, meaning, and implications of the capacity of judgment (Article 16) in the context of a (prospective) marriage.

    P, born in 1951 and E, born in 1934, had lived together since 1979 and in that year the couple initiated the formal preparatory procedure with the aim to marry (Article 97 I).40

    During the preparatory procedure, P’s mother, siblings, and in-laws spoke out against the marriage and, ultimately, brought forward an application to prohibit the prospective marriage. They claimed that P was mentally disabled and thus lacked capacity of judgement with regards to the prospective marriage.

    Based on three court appointed experts’ opinions, the court of first instance came to the conclusion that P’s mental deficiency was in the border area between debility and imbecility. However, the court of first instance held that neither the couple’s own interests nor those of other persons exclude the prospective marriage. It stated that marrying E was evidently in P’s interest since she could remain in her familiar environment. P, who was pregnant at that time, was from a medical point of view also not in danger of passing on her mental condition onto her offspring, thereby rendering moot this (ethically very weak, to say the least) line of argument. As the court, dismissing the claim brought forward by P’s family, said: “Since P […] could expect some help from E […] in fulfilling her duties as a housewife and mother and since the simple, nature-loving life on the farm as well as the harmony between [the couple] could compensate for some educational shortcomings, it cannot be said that the child’s interests […] necessarily preclude the marriage.” P’s family appealed this decision to the Higher Court, but to no avail. With their appeal to the Federal Supreme Court the claimants essentially repeated their arguments presented to the lower courts.

    With regard to the capacity to marry (Article 97 I), the Federal Supreme Court had to decide whether P should be regarded as having capacity of judgement pursuant to Article 16. Agreeing with the lower courts, it held that the (in-)capacity of judgement cannot be determined, once and for all, in an abstract manner without regard to the specific circumstances of each individual case.

    The Federal Supreme Court held that, as far as the capacity to marry is concerned, one must (only) determine whether the fiancées have the mental maturity to enter into marriage with the concrete partner and whether they are capable of understanding the concept and meaning of a marriage and the mutual obligations resulting from it. Interestingly, the court continues by stating that the requirements regarding the capacity of judgement in the context of marrying are higher compared to the capacity of judgement in business or commercial dealings. At the same time, however, the requirements must not be so high to effectively render meaningless marriage as a constitutionally guaranteed right for too large a part of the population.

    In its decision the Federal Supreme Court recalled that the reason for the requirement of Article 97 I was to prevent from the very beginning (dysfunctional) marriages which can never result in a true communion between two people. In addition, this provision wishes to protect the mentally incapable weak(er) person from being at the mercy of his or her spouse.

    However, in a case like the present, capacity of judgement can be affirmed if the marriage is only beneficial for the mentally disabled person. By repeating the facts determined by the lower courts, the Federal Supreme Court found that a marriage with E was in the best interest of P and that she was to be considered as having capacity of judgement to enter into the marriage according to Article 97 I.


    In a landmark case involving a famous artwork, the Federal Supreme Court clarified its view with regard to claims for restitution based on possession (Articles 934 and 936) and the relevant question of good or bad faith of the current possessor in light of Article 3.

    In 1989, Mr. Werner Merzbacher, an important private collector of contemporary art, acquired for just over $ 1 million the painting “Footman with Samovar” which was painted in 1914 by the Russian artist Kasimir Sewerinowitsch Malewitsch, one of the most prominent representatives of the so-called Cubo-Futurism school. The sale had been executed on a commission basis by a gallery in Geneva, with the seller remaining anonymous.42

    Prior to the acquisition, Mr. Merzbacher had consulted with an expert who had confirmed the authenticity of the artwork. However, the expert had also, at this point, informed Mr. Merzbacher about rumours which were circulating in the art world claiming that a stolen artwork from Malewitsch was apparently on the market. Consequently, Mr. Merzbacher initiated extensive investigations regarding the “Footman with Samovar” and contacted organisations including Interpol about the matter. These investigations yielded no results.

    In 2004, a Russian art collector filed a lawsuit against Mr. Merzbacher for restitution of possession based on Articles 934 and 936 (basically arguing that Mr. Merzbacher was not a bona fide possessor, but had acted in bad faith when acquiring the artwork). He claimed that the “Footman with Samovar” had been stolen from the private collection of his parents in 1978, and argued that this was a fact that Mr. Merzbacher both could have and ought to have known.

    Both the District Court of Meilen as the court of first instance and the High Court of the Canton of Zurich as the second instance dismissed the case. They took the view that Mr. Merzbacher neither had nor ought to have had knowledge of the theft of the painting and, therefore, bona fide could be assumed based on Article 3 I. The lower courts held that Mr. Merzbacher had exercised proper and due diligence because he had initiated investigations prior to making the purchase.

    The Federal Supreme Court, however, set aside the decision and remitted the case to the High Court of the Canton of Zurich. In particular, the Federal Supreme Court held that Mr. Merzbacher should have conducted more detailed investigations and that, therefore, the presumption of bona fide does not apply in the current case. The court, having regard to Article 3 II, pointed out that the art expert had informed Mr. Merzbacher about a concrete rumour indicating that “Footman with Samovar” might have been stolen. This was a clear warning sign considering that paintings from Malewitsch have only very rarely been put on the market for sale in the relevant period. In the court’s own words, “[i]t is sufficient that at the time, from an objective point of view, the consultation of one or more experts would have been a suitable (if not the most appropriate) and reasonable measure to find out more about this rumour and any defects or limitations of the right of disposal on the part of the seller.”

    38BGE 132 III 305.

    39BGE 109 II 273.

    40In a nutshell, the aim of the preparatory procedure is to give the civil register the opportunity to assure itself that the marriage requirements are met (inter alia, that no fake marriage takes place, that the prospective spouses are not already married to other persons, and that the spouses are capable of marrying).

    41BGE 139 III 305; the details, including the names of the parties involved, are publicly known.

    42The details and facts of this complex case are contained in the decision CG040012 of the District Court of Meilen of 21 December 2010.

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